By taking a broad comparative perspective, students will gain a thorough grounding in the law and procedures relevant to the core ADR processes of negotiation, mediation, early neutral evaluation, expert determination and arbitration, as well as newly emerging hybrid ADR processes. Ethical issues and the role of the participants in each process will also be analysed.
- The legal and theoretical framework of ADR. Examination of the legal, theoretical, socioeconomic factors contributing to the global growth of ADR. The contextual development of and regulatory framework of ADR in England and Wales. The relationship between ADR and litigation in national courts. A comparative analysis of the extent to which state or judicial compulsion to use ADR undermines justice and/or infringes Article 6 of the European Convention on Human Rights.
- Negotiation. The key tactics, strategies and negotiation models including a detailed examination of the process.
- Mediation. The theory and philosophy underpinning mediation. A comparative analysis of the different models of mediation and its legal, ethical and regulatory framework. A detailed examination of the mediation process. The roles of and strategies used by the various participants. Key mediation schemes, including court, judicial and international schemes.
- Early Neutral Evaluation. The context in which it can be used, its strengths and weaknesses, the operation of the process and its legal effect.
- Ethics and Settlement. Consideration of the ethical issues that can arise in ADR generally and specifically in negotiation, mediation and arbitration. The legal and practical requirements for an enforceable settlement agreement and options for recording settlement both in and out of court.
- Expert Determination. The context in which it can be used. The contractual principles of expert determination. The stages in the process. The contractual and non-contractual grounds of challenge. Enforcing a determination and how this differs from mediation and arbitration.
- Arbitration. The international context of Arbitration – UNCITRAL Model Law, the Arbitration Act 1996, ad hoc and institutional arbitration, applicable laws, language, seat and venue. The fundamental concepts of international arbitration. The arbitration agreement. Commencing an arbitration and the main stages in the process, including the powers and duties of the arbitral tribunal and the role of the national courts. The arbitration award and the main grounds on which it can be challenged, and how it can be enforced under the New York Convention 1958.
If you complete the module successfully you should be able to:
- Understand the legal and theoretical principles and concepts of ADR; assess the factors that have contributed to the global growth of ADR from a broad comparative perspective and the relationship between ADR and Litigation in national courts.
- Apply the regulatory framework, legal principles and concepts relevant to each of the core ADR processes, the newly emerging professional applications and online ADR.
- Explain the practical requirements and operation of negotiation, mediation, early neutral evaluation, expert determination and arbitration, including an analysis and evaluation of their differences and similarities, their effectiveness and the extent to which they are supported by or challenged in national courts.
- Critically assess ethical considerations that arise in ADR generally and specifically in each of the ADR processes, and explain and evaluate the legal and practical requirements for concluding, recording and enforcing an effective settlement agreement.
- Conduct legal research tasks using primary and secondary sources, use research evidence appropriately to support arguments, and demonstrate the ability to think critically, as well as the following:
- Apply knowledge in analysing and evaluating legal, ethical and theoretical complex problems so as to provide soundly reasoned legal and practical solutions.
- Demonstrate effective communication skills and a practical problem-solving approach in complex legal and factual scenarios in ADR.
- Reflect on learning, identifying areas for improvement and responding appropriately.
3hr 15 mins unseen examination.
Blake, S., J. Browne and S. Sime A practical approach to alternative dispute resolution. (Oxford: Oxford University Press, 2018) 5th edition. [ISBN 9780198823094].